Harsh, but deserved ASA-Solal ruling

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Posted 19 October 2011

This is a devastating ruling against Solal / Solal Technologies. I think it speaks for itself. 

“A cursory glance over rulings issued in relation to the respondent’s advertising suggests that the respondent has deliberately adopted an adversarial approach, and intentionally attempts to frustrate the process by harping on technical, interpretive issues, often jumping to conclusions, accusing the ASA of colluding or having “secret communications” with certain entities, and oftentimes threatening to litigate against the ASA and complainants.”

[gn_note color=”#fef1be”]Solal Technologies / HA Steinman / 17588
Ruling of the : ASA Directorate

In the matter between:
Dr Harris Steinman          Complainant(s)/Appellant(s)
Solal Technologies (Pty) Ltd        Respondent[/gn_note]

19 Oct 2011

http://www.asasa.org.za/ResultDetail.aspx?Ruling=5791 

 Dr Steinman lodged a consumer complaint against a print advertisement for Solal’s range of “FUNCTIONAL SUPERFOODS”, which appeared in the Durban Murcury during March 2011. 

The advertisement is headed “Too much sugar may accumulate fat and make learning difficult”. The body copy states, inter alia, as follows: 

“Studies have shown that excessive consumption can boost the body’s production of cortisol, a hormone that causes fat accumulation. Sugar excess is not good for the brain either. A study published in the medical journal Neuroscience showed that sugar suppresses the brain’s neurotropic factor, responsible for learning, memory and plasticity (the ability of the brain to learn new things)”. 

Below this, it contains short summaries of the benefits of the respondent’s “Nougat”, “Balsamic Reduction”, “Sugar-free Vegetarian Jellies”, “Sugar-free Syrups”, “High Protein Mueslis” and “Belgian Chocolate Truffles and Praline Bars”. 

At the bottom, it lists the following “References”: 

“Gardner, L B, et al. Effects of dietary carbohydrate on fasting levels of human growth hormone and cortisol. Proc Soc Exp Biol Med. 169(1): 36-40, 1982”, and 

“Molteni, R, et al. A high-fat, refined sugar diet reduces hippocampal brain-derived neurotropic factor, neuronal plasticity, and learning. Neuroscience. 112(4):803-814, 2002”. 

COMPLAINT

In essence, the complainant argued that there is no scientific evidence that the headline used in the advertisement is at all relevant to ordinary consumers. 

The first reference study by Gardner et al. was published in 1982, and was done on male weanling carbohydrate-sensitive BUE rats. One cannot extrapolate this to humans because: 

• studies in rats often cannot be substantiated in humans,

• the rats were carbohydrate-sensitive, and not normal rats, and

• only male rats were used.

 

The complainant also added that it is significant that since 1982 no further studies were conducted (either on rats or on humans) to corroborate these findings. 

The second referenced study by Molteni et al. was not only conducted on animals as well, but sugar (carbohydrate) was not the only causal substance investigated. The diet investigated was specifically a high-calorie diet, a combination rich in saturated fat and refined sugar, in order to mimic the typical diet of most industrialised western societies. 

Given this, the respondent is deliberately misleading people and using fear tactics contrary to the provisions of the Code. 

Finally, given that the respondent has had a number of adverse rulings issued against it, it should be sanctioned. 

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE

In his complaint, the complainant quoted and/or identified the following clauses of the Code as relevant: 

Clause 3.1 of Section II – Fear 

Clause 4.1 of Section II – Substantiation (as read with Clause 4.25 which contains the definition of “Scientific substantiation”)

RESPONSE

Fluxmans attorneys, on behalf of the respondent, initially raised a number of procedural issues, including, but not limited to the complainant’s status, the ASA’s procedures, and whether or not the advertisement at issue is “current” for the purposes of the Code. 

Insofar as the merits are concerned, it pointed out that the Directorate did not, in accordance with Clause 8.2.2.3 of the Procedural Guide specifically call on it to provide substantiation. Nevertheless, it submitted documents in support of its advertising, and requested confidentiality on said documentation. 

In addition, it took issue with the complainant’s interpretation or linkage of Clause 4.1 of Section II (Substantiation) with Clause 4.25 of Section I (the definition of “Scientific substantiation”). The argument appears to simply be that the one clause (4.1 of Section II) requires “Documentary evidence”, which need not necessarily be “Scientific substantiation”. 

Insofar as the complaint that the advertising exploits consumers’ fears is concerned, it argued that the wording used does not do so. Emphasis is placed on the potential effect of too much sugar (which in any event is true), and consumers have a right to be adequately informed of these potentially harmful effects. 

Subsequent to this, it submitted copies of email correspondence between the person who, according to http://www.solaltech.com/NEW%202011%20About%20SOLAL.pdf is its “Director of Professional Affairs, Mr Brent Murphy and the complainant, wherein the complainant gives Mr Murphy a “Heads up on this:” and explains that the Sugar Association of SA have contacted him (the complainant) for guidance regarding their complaint to the ASA insofar as Solal’s advertising claiming that sugar causes cancer was concerned. In this email, the complainant sets out his reasons why he believes that such a claim is incapable of acceptable evidence. 

Five days later the respondent submitted a copy of an email from Mr Colin Levin (who according to http://www.solaltech.com/NEW%202011%20About%20SOLAL.pdf is its “Financial and Legal Director”) stating “Its official, TAC/Steinman/Jobson are in bed with the TAC”. No explanation for the relevance or significance of this email was provided. 

When the Directorate requested clarity as to why the respondent believes its documentation should be regarded as confidential in terms of the Code, the respondent insisted on receiving copies of: 

“each and every [respondent’s emphasis] record, document and other information including electronic records, letters, telefaxes, emails etc (hereinafter collectively referred to as ‘document’ and/or ‘documents’) in your possession relating to each and every [respondent’s emphasis] complaint lodged by the Sugar Association of South Africa (‘the Sugar Association’) and/or Mr Steinman and/or the Treatment Action Campaign (‘the TAC’) against … Solal Technologies (Pty) Ltd (and/or its predecessor Solal Technologies Fine Pharmaceuticals (Pty) Ltd), including without limitation: 

… the request made by Mr Steinman and/or the Sugar Association and/or the TAC or any other person, entity or organisation for our … documentary evidence marked confidential, which request gave rise to your letter dated 28 June 2011 [in which the Directorate requested the respondent to motivate its request for confidentiality], as well as your response and all subsequent correspondence in regards thereto; 

… each and every [respondent’s emphasis] document received from or sent to Mr Steinman (including without limitation each and every [respondent’s emphasis] document relating to the aforementioned complaint); 

… each and every [respondent’s emphasis] document received from or sent to the Sugar Association; 

… each and every [respondent’s emphasis] document received from or sent to the TAC and/or its representatives; 

… each and every [respondent’s emphasis] complaint received from the TAC and/or any of the following persons (in their alleged capacities as ‘consumers’) : Steinman, Low, Charleston, Laithwaite (or any person or entity representing them) in regard to

CamCheck posts related to Solal
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and its predecessor aforesaid as well as all correspondence between the ASA and each such complainant”. 

Later that same day, the respondent accused the ASA of being “unreasonable, high-handed and indeed irregular” in its decision to refuse another extension for certain comments. It explained that a copy of the relevant correspondence was furnished to the ASA’s CEO. In addition, it disputed the Directorate’s interpretation of the provisions of the Code dealing with substantiation, and further argued why the documents submitted were sufficient and should be accepted. 

It explained that it has little faith in the ASA correctly applying the Code, and therefore additional documentation is submitted in the form of a letter from Mr Rael Koping, a registered dietician, whom the ASA has accepted in the past. Certain comments were again made about the interpretation of the provisions of the Code, and the Directorate’s application of procedures set out in the Code. 

The following day, the respondent submitted its “Non Confidential Summary” of the documentation previously submitted. 

ASA DIRECTORATE RULING

The ASA Directorate considered all the relevant documentation submitted by the complainant. 

Before getting to the merits of the matter, the following information is pertinent and deserves emphasis: 

Clause 3.1 of Section I of the Code explains that the Code (which forms the guiding document of the ASA, and is drawn up by the ASA with the participation of representatives of the marketing communication industry, and is amended from time to time to meet the changing needs both of the industry and of society) should be applied “… in the spirit, as well as in the letter”. 

In addition, the Code clarifies that the interpretation thereof is vested in the Directorate and the relevant committees of the ASA. Mention is also made (refer Clause 11 of the Preface) that “All entities bound by the Code [which includes the respondent] shall neither prepare nor accept any advertising which conflicts with the Code and shall withdraw any advertising which has subsequently been deemed to be unacceptable …” 

A cursory glance over rulings issued in relation to the respondent’s advertising suggests that the respondent has deliberately adopted an adversarial approach, and intentionally attempts to frustrate the process by harping on technical, interpretive issues, often jumping to conclusions, accusing the ASA of colluding or having “secret communications” with certain entities, and oftentimes threatening to litigate against the ASA and complainants. 

In Solal Technologies – Healthy Fast Foods / M Low / 16575, for example, the Directorate issued an initial ruling on 15 December 2010, dealing substantially with interpretive and procedural issues, and (entirely at its discretion) afforded the respondent an additional opportunity to address the merits of that complaint. In a ruling issued on 29 June 2011, the Directorate, inter alia, pointed out the following: 

“The argument put forward by the respondent is effectively based on its perception that the complainant is complaining on behalf of the TAC, who in turn have a commercial motive. 

It is disconcerting to note that this exact issue was raised, and dealt with in the Directorate’s ruling of 15 December 2010 on this file. The respondent has not appealed that ruling, and as such the Directorate cannot deviate from its finding in this regard. If the respondent believed that its latest submissions could overturn the Directorate’s initial ruling on this issue, it should have filed an appeal as per the proper procedure. It has not done so.

 

The next concern relates to the omission of the complainant’s ID or passport number and his contact details. Here too, the Directorate notes, with concern, that the respondent effectively raised the same issue in its initial response, and this was dealt with by the Directorate in the ruling issued on 15 December 2010. 

As such, the Directorate again rejects this disingenuous approach of raising issues that have no relevance purely for the sake of raising issues”. 

The above is but one example of how the respondent continuously raises (and in some instances) re-raises issues in what appears to be an attempt to frustrate the process, rather than take the Directorate into its confidence and simply argue the merits of its advertising. In other matters not worth quoting for the purpose of this ruling, the respondent has accused individual ASA staff of improper conduct, sent letters of complaint to the CEO in relation to members of staff, ignored requests by ASA staff to correctly address correspondence, and indicated that it has little or no regard for certain rulings. The respondent has even disputed the ASA’s entitlement to require payment for appeals prior to the appeal being finalised, despite the fact that this requirement is clearly stipulated in the Code. 

While the Directorate accepts that any party to a dispute is entitled to argue its case and protect its interest, the respondent would do well to reconsider its adversarial stance. The Directorate has, in most instances, been more than lenient with the respondent. This courtesy, however, does not appear to benefit both parties to the dispute, or the ASA procedures, and often results in delays, prejudicing the complainant and postponing the finalisation of valid complaints contrary to the intention and purpose of the Code and Self –regulatory system, to which the respondent’s association is a member. 

Procedural and interpretive issues 

The respondent has voiced disagreement with the ASA’s application of the procedures insofar as determining whether or not documentation is confidential in terms of the Code. 

The Directorate, at its discretion afforded in terms of Clause 5.3 of the Procedural Guide, was satisfied that the documentation relied on did not meet the criteria laid out in the Code to be regarded as confidential. 

When the respondent was advised of this, and afforded the opportunity to withdraw any documentation it wished, it confirmed that it does not withdraw the documents, and that its rights insofar as any potential damages may arise as a result of the ASA disseminating this documentation remain reserved. It also added that it has opted, for the sake of convenience, to only provide the Directorate with summaries of the relevant studies, as “no good purpose will be served by the ASA being flooded with reams and reams of irrelevant documentation”. 

For the sake of completeness the Directorate again clarifies that the request for the respondent to motivate its request for confidentiality did not come as a result of any correspondence from any third party to see the substantiation filed by the respondent. It was simply done to assist the Directorate in understanding the respondent’s reasons and ensuring that a considered decision is made in this regard. 

The requests for “each and every” correspondence between the ASA and the identified parties is therefore ill-conceived and irrelevant. 

Insofar as the Directorate’s failure to specifically identify clauses relevant to the complaint, the Directorate is satisfied that the complainant adequately clarified which clauses of the Code he believes are relevant. 

In terms of Clause 3.1.3 of the Procedural Guide, “The … sections of this Code to which the complaint relates, should be identified. Should the complainant not be able to do so, the ASA will consider the complaint in terms of the sections it regards as relevant and deal with the complaint as if it had been lodged in terms of those sections”. 

It is trite that, in circumstances where the complainant identifies the clauses pertinent to the complaint, the Directorate is bound to consider those clauses only.

 

The complainant stated, inter alia, as follows: 

“I argue that there is no evidence, as required by Section 1 Clause 4.25 of the Code with documentary evidence as set out in Clause 4.1 of Section 2 of the Code, to conclude that these claims are pertinent to ordinary consumers. 

These claims are contrary to a number of ASA clauses and regulations, including the general principle that ‘advertisements should not use fear tactics without justifiable reason’.” 

He also states “I request that the ASA take action against this advert and the company responsible for this highly misleading and fear generating advert …” 

The only reasonable interpretation, and in fact the same interpretation as reached by the respondent (as is evidenced from its response in dealing with these clauses) is that the relevant clauses are Clause 3.1 and Clause 4.1 of Section II, dealing with “Fear” and “Substantiation” respectively. In the event of an adverse ruling, the consideration of sanctions in accordance with Clause 14 of the Procedural Guide would apply.

 

Accordingly, the fact that the Directorate did not also refer to these clauses in its correspondence calling for a response to the complaint does not imply that the requirements of the Code have not been met. The respondent was clearly and adequately informed of which clauses the complainant believes are problematic, and duly afforded the opportunity to address them, an opportunity which it elected to use. 

Lastly, in relation to the bona fides and status of the complainant. 

This appears to, yet again, be a trifle attempt to derail the merit investigation and have the complainant declared a vexatious or competitor complainant.

 

In Alcat Test / HA Steinman / 12001 / 12307 (11 June 2009), the Advertising Standards Committee (the ASC), dealing with an appeal of a Directorate ruling, had to consider whether the complainant in that matter, Dr HA Steinman, met the criteria of a “competitor complaint” in terms of the Code. The ASC ruled as follows: 

“In the instant case, although it may have been suggested by the Respondent, there is no evidence before us to suggest that in lodging the complaints the Appellant [Dr Steinman] was acting on behalf of any competitor to the Respondent. The fact that the Appellant may have ties with various entities in the industry does not mean that he was acting as their agent in lodging the complaints. The Appellant states that in lodging the complaints he was acting on his own behalf and in his own right as a concerned citizen. In the absence of any evidence to the contrary, we accept this submission and accordingly must decide the matter on the basis that the complaints were lodged by the Appellant in his own individual capacity”.

 

Likewise here, the respondent has not submitted a shred of evidence that shows that the complainant has any commercial ties with the Sugar Association or, for that matter, with the TAC, was instructed by the either entity, or is attempting to protect any commercial interest of the either entity. There is also nothing to show that the complainant stands to benefit commercially from any adverse ruling in this matter. 

The respondent’s argument in this regard is therefore rejected, and the Directorate is satisfied that the complainant is regarded as a consumer complainant.

 

The final procedural “red herring” put up by the respondent was whether or not the advertisement at issue was still “current” for the purposes of the Code. Here the respondent argued as follows:

“The advertisement forming the subject matter of Steinman’s complaint appeared in the Durban Mercury on 3 March 2011. 

The advertisement is accordingly not current as contemplated by clause 3.3 of the procedural Guide. 

There is, in accordance with the principles enunciated in paragraph 3.2 of the Code no probable impact of the advertisement upon anyone as there is no one who is likely to see and read the 3 March 2011 edition of the Durban Murcury. 

The Complaint should accordingly be disregarded for this reason too”. 

In the same letter, the respondent makes the point that the complainant resides in the Cape, and is therefore not likely to be exposed to the Durban Mercury. 

The complaint was submitted to the ASA on 10 March 2011, clearly still within the 90 day deadline for submitting a complaint in accordance with the Code. It is also noted that the complaint included a copy of the advertisement at issue, and it therefore stands to reason that the complainant was exposed to the advertisement, whether in the newspaper or as a result of having seen it by some other means. The fact that the 3 March 2011 issue of the Murcury has come and gone is irrelevant, because there is nothing before the Directorate to suggest that the advertisement appearing in that issue will not be used again as well.

 

The allegation that the advertisement is not “current” for the purposes of the Code is therefore rejected. 

The Directorate now turns to the merits of the complaint, namely whether the headline used is substantiated and/or likely to unjustifiably evoke fear. 

The headline at issue reads “Too much sugar may accumulate fat and make learning difficult”. It then continues stating: 

“Studies have shown that excessive consumption can boost the body’s production of cortisol, a hormone that causes fat accumulation. Sugar excess is not good for the brain either. A study published in the medical journal Neuroscience showed that sugar suppresses the brain’s neurotropic factor, responsible for learning, memory and plasticity (the ability of the brain to learn new things)”. 

Below this, the respondent’s sugar-free products are advertised and promoted. 

In contextualising, or supporting this claim, the advertisement refers to two studies: 

“Gardner, L B, et al. Effects of dietary carbohydrate on fasting levels of human growth hormone and cortisol. Proc Soc Exp Biol Med. 169(1): 36-40, 1982”, and 

“Molteni, R, et al. A high-fat, refined sugar diet reduces hippocampal brain-derived neurotropic factor, neuronal plasticity, and learning. Neuroscience. 112(4):803-814, 2002”. 

The only logical inference any reasonable consumer would draw from this is that the two cited studies support the claims made in relation to excess sugar. 

 

The opinion submitted by Mr Rael Koping sets out his qualifications (BSc. (Med) Hons in Dietetics from UCT in 1993) and clarifies that he has been practicing in the field ever since. He also explains that there is no conflict of interest and that he is suitably qualified to express an independent expert opinion on the respondent’s advertising. 

It should be noted that in Solal Technologies / SASA / 17484 (20 September 2011) the Directorate clarified that it cannot simply accept Mr Koping by virtue of the fact that his view was previously accepted in another matter (under reference Solal Technologies / SASA / 13733 (17 May 2010).) It is not necessary to repeat the reasoning here, save to say that the Directorate has to apply its mind to the evidence submitted in relation to Mr Koping’s status, area of expertise, and comments. 

Mr Koping clarifies “Solal volunteered a list of scientific references, as well as quotes from each, which they considered relevant to the disputed claims. In total seventeen references were provided. Twelve references pertain to Claim a and six references pertain to Claim b … I have been given this list, and in addressing the requirements of Clause 4.1.1, assess the existence of these references using Google Scholar and Pubmed search engines”. 

When discussing his findings, Mr Koping states: 

“All of the titles listed are verified to be existing scientific publications. Neither the content, nor the abstract of the Gardner article which Dr Steinman brings into question was available on-line, so I cannot comment as to its content. Additionally, two articles linking poor sugar control to dementia both quoted the same study. I found one article on the relationship between sugar and Cortisol to be of little relevance. Those articles aside, I confirm that Solal hold in their possession documentary evidence as required by Clause 4.1, to support all claims, whether direct or implied, that are capable of objective substantiation … 

Regarding the Molteni study, I agree with Dr Steinman inasmuch as the article does not distinguish between the role of saturated fat, and that of refined sugar in impeding learning. I do mention that another article listed by Solal is directly relevant. The Doctor’s comment that studies in rats cannot be often substantiated in humans may be misleading. Most studies of this nature are done on animal models as they cannot be done on humans, and it seems apparent that this study was designed to assess the effect of the Western Human Diet on brain function …” 

He then explains his perception on the intent and likely interpretation of advertising in general, as well as that of Solal, and specifically notes: 

“The scientifically styled references seem to have been featured in the advertisement to give the impression of Solal products being well researched. They are not linked in reference to any claim, and seem to be inserted for positioning, as opposed to academic purpose … I have not enquired as to why they chose to cite those particular references, perhaps to through a red herring at their opposition, or to invoke the ire of the good Dr Steinman. Notwithstanding this, my conclusion is as follows: … In terms of the scope of this document, Solal has conformed to the requirements of the ASA by holding documentary evidence in support of their advertising claims”. 

 

The Directorate has several reservations and concerns about this verification: 

Mr Koping is not asked to express a view on the respondent’s marketing practice, intentions, or even the likely interpretation of the advertising. His comments in this regard are therefore entirely irrelevant. 

It would appear from statements such as “Solal volunteered a list of scientific references, as well as quotes from each, which they considered relevant to the disputed claims …” and “All of the titles listed are verified to be existing scientific publications …” that Mr Koping has simply considered selected quotes as provided by the respondent, and not the full articles or studies. At best, he appears to have verified that the articles or references actually exist, and based his opinion on selected excerpts provided by the respondent. This is not adequate, and does not appear to suggest that Mr Koping has critically applied his mind to the full extent or content of the research at issue as opposed to simply taking Solal’s view as accurate and applicable. 

It should also be noted that no indication is provided as to which studies support which claims, making it difficult for the Directorate to consider whether Mr Koping’s verification indeed reflects to some extent that of the abstracts provided. In accordance with the principle established by the Advertising Industry Tribunal in Lifebuoy / Dettol / 14813 (27 August 2010), the Directorate is obliged to satisfy itself that the expert’s view appears adequate. 

Mr Koping echoes the complainant’s argument that the referenced studies put up as applicable in the advertisement are irrelevant, and do not support the claims at issue. 

The Directorate is particularly concerned over the fact that Mr Koping appears happy to verify claims despite not having even read all the references relied on by the respondent entirely, but rather the selected quotes as provided by the respondent only. This tendency was also highlighted in Solal Technologies / SASA / 17484 (20 September 2011). 

For all the above reasons, the Directorate is not satisfied that Mr Koping’s verification is adequate in accordance with the requirements of Clause 4.1 of Section II of the Code. The advertisement and relevant claims are therefore currently unsubstantiated and in breach of Clause 4.1 of Section II. 

Given the above finding: 

The advertisement and disputed claims must be withdrawn; 

The process to withdraw the advertisement and disputed claims must be actioned with immediate effect on receipt of this ruling; 

The withdrawal of the advertisement and disputed claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide; and 

The advertisement and disputed claims may not be used again in its current format. 

The complaint is upheld, and it is accordingly not necessary at this point to debate whether the definition of “Scientific substantiation” applies to the matter at hand, or whether Clause 3.1 of Section II (Fear) has been contravened.

 

Given the adverse decision made, and given the complainant’s submission that the respondent has been ruled against on a number of occasions, the Directorate will consider whether sanctions are applicable, and if so, which sanctions. 

The complainant is therefore afforded ten working days from the date of this ruling to comment on this issue, and motivate any potential sanction/s requested. After this time, the respondent will be afforded equal opportunity, after which the Directorate will consider the issue of sanction in accordance with the procedures laid out in the Code.

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3 Responses to Harsh, but deserved ASA-Solal ruling

  1. Kevin Charleston 19 October, 2011 at 11:03 pm #

    Congratulations Harris.  
    I am pleased to see the Directorate taking its gloves off.  About time.   
    Solal has persisted for too long in not playing the ball, choosing rather to shoot the complainants, the referees and blasting away at the pitch.  Those actions are coming home to bite them.  
    what appears to be an attempt to frustrate the process, rather than take the Directorate into its confidence and simply argue the merits of its advertising

  2. Rob Paige 4 August, 2013 at 6:58 pm #

    Another government bully agency taking advantage of a private company. Disgusting!

  3. Harris 4 August, 2013 at 9:18 pm #

    @Rob
    Could you please elaborate?

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